Very happy to introduce our next Featured Philosopher: Jonathan Quong. His fear of PEA Soup Overlords warms the heart. Here now Jonathan:

I’m working on a book, The Morality of Defensive Force, and in this post I’ll provide a brief description of one of the ideas from the book.

Most people who work on the morality of defensive force agree that it’s wrong to use defensive force when doing so is unnecessary. For example, suppose you can avert a wrongful aggressor’s attack in one of two ways: you can shoot and kill the aggressor, or you can render him unconscious with some knockout gas that will have no lasting harmful effects. Killing the aggressor is wrong because it isn’t necessary.

But why is it wrong to use unnecessary defensive force? You might think unnecessary defensive force is wrong because it involves the imposition of gratuitous harm, that is, the imposition of harm for no positive moral reason. But this isn’t true. Suppose you can avert the wrongful aggressor’s threat either by killing him, or else by jumping to safety, but you will suffer a tiny scratch on your hand if you jump. Shooting the aggressor is not gratuitous—doing so helps you avoid suffering a minor scratch. But shooting the aggressor is, I think, still clearly unnecessary.

Some thus argue that the necessity condition requires a kind of moral weighting of the defender’s options. We weigh all the harms that would be incurred by anyone if the defender chooses option 1, and compare this moral weighting to all the other available options, while also discounting harms that any wrongful aggressors might suffer relative to harms suffered by the defender or innocent bystanders. The necessity condition then directs the defender to choose the option with the lowest morally weighted harm, or the lowest expected morally weighted harm. Seth Lazar and Jeff McMahan have, independently, defended versions of this view of necessity. The necessity condition thus ends up looking an awful lot like another constraint on the permissible use of force, wide proportionality, which is concerned with whether a harmful act is justified once all the harmful effects of the act are taken into account.

But here’s the sort of case that illustrates why we need a different conception of the necessity condition:

Grenade: Albert is wrongfully threatening to seriously injure you. You have only two options: (i) allow him to wrongfully injure you, or (ii) throw a grenade that will cause Albert roughly equivalent injuries to those he is threatening to impose on you, thus leaving you safe, but the grenade will also kill six innocent bystanders.

In this case, the morally weighted harm in option (i) is far less than the morally weighted harm in option (ii). But it’s not wrong to throw the grenade because it’s unnecessary. Rather, it’s wrong to throw the grenade because doing so is disproportionate: it is not proportionate to kill six innocent people to avoid suffering serious injuries. If you threw the grenade, it would be very odd for Albert to complain that you used unnecessary defensive force against him. The bystanders are the ones who can demand that you refrain from throwing the grenade, not Albert.

I think the necessity condition should identify a complaint that is distinctive to the aggressor, which takes roughly the following form: “you owed it to meto suffer x amount of harm to ensure that I didn’t suffer y amount of harm”. There is a widely accepted moral right that has this structure: the right to be rescued when others can do so at reasonable cost. I argue that this right provides the underlying explanation for the necessity condition. Unnecessary defensive force is wrong because the defender could save the aggressor from some amount of harm at reasonable cost. Of course what’s unusual is that the defender can save the aggressor from harm that she herself might otherwise impose. This strikes some people as an important difference; it shows that the right to be rescued can’t really explain the necessity condition. But I argue that this isn’t a relevant difference—what matters is whether the defender (or anyone else) can bear a reasonable cost to ensure the aggressor doesn’t suffer some larger harm. I call this the RESCUE conception of the necessity condition.

This conception has several advantages. First, it shows why the necessity constraint gives rise to a demand that aggressors in particular can make of defensive agents.

Second, because it construes the necessity condition as giving rise to interpersonal moral demands, it yields better results in cases that have a certain temporal structure. These are cases where the defensive agent correctly predicts that if she performs some permissible act when she could easily refrain from doing so (e.g. wearing a short skirt, or confronting a partner about unpaid child support), an aggressor will initiate a wrongful attack that the defensive agent will then only be able to repel by imposing significant harm on the aggressor. If the necessity constraint requires us simply to balance the morally weighted harm associated with each of the defender’s options, then the defender would violate the necessity condition by performing the permissible act and then using proportionate defensive force. The rescue conception of the constraint doesn’t have this implication. Borrowing an idea developed by Jerry Cohen, I argue that where an interpersonal moral demand depends on a premise about a future empirical fact, and the person making the demand is the one who will make the empirical premise true, then the demander must be able to justify making the empirical premise true for the demand to be valid.

This gets things right. Abusive men, for example, cannot demand that their partners refrain from performing permissible acts by pointing out that they will become violent if their partners do these permissible things. Only if we construe the necessity condition as an interpersonal moral demand, one that has to pass the test described above, will we get the correct results in cases like this.

I have lots of other things to say about defensive force, but I’ve exceeded my word limit for this post, and I don’t want to anger the Pea Soup Overlords!

7 Replies to “Featured Philosopher: Jonathan Quong

  1. Hi Jonathan,
    you say that your account “shows why the necessity constraint gives rise to a demand that aggressors in particular can make of defensive agents.” I do not think you show that; you seem to presuppose it. More precisely, you presuppose that a culpable would-be murderer does not forfeit the right to be rescued at little cost to his would-be victim. I see no reason to accept this presupposition. Since the would-be murderer intentionally violates the victim’s right against lethal attack, although he could honor this right at little cost to himself, it appears that his would-victim is on grounds of reciprocity released of her duty to honor his right against lethal attack – even if she could honor it at little cost to herself. The murderer seems to simply have no standing to complain here – his complaint would be pure hypocrisy. I have pointed this out against your account before. See For my own alternative account of the necessity condition, see
    All the best, Uwe

  2. Hi Uwe,

    Thanks very much for your comment. We disagree about whether rights to be rescued are subject to a reciprocity condition. I argue (in the book and some related papers) that some rights, including the right to be rescued when others can do so at reasonable cost, cannot be forfeit even when the right-holder is guilty of serious wrongdoing. Even very serious wrongdoers retain some moral standing, in my view, and thus they must retain the standing to make at least minimal claims on others. The right to be rescued is minimal partly because the duties it imposes are limited but the benefits to the right-holder are very great. Suppose a fire breaks out in a section of a prison threatening to kill only some people who are highly culpable murderers. If we can rescue them at reasonable cost, I believe we ought to do so, regardless of whether they have, or would, reciprocate. It would be morally wrong to leave them to die in the fire, and I think the wrongness of doing so must be explained in part by appeal to the claims they have to be rescued. The alternatives appear to be: (i) it is not wrong to leave them to die in the fire, or (ii) the wrongness has nothing to do with their claims. Neither of these strike me as true.

    I know you hold very different views about this, but I guess neither of us has persuaded the other!

    Thanks and Best,

  3. This is an interesting proposal, and I always love when folks bring in directionality, but I have a few initial worries about the proposal nonetheless.

    First I worry that of all that demonstrating necessity into wide proportionality isn’t much of an objection. After all, many in the jus in bello literature simply take as a given that necessity is a form of wide proportionality in which any military benefit is not merely too minimal, but non-existent (Although this fact is certainly not anywhere near dispositive, I would note that that’s the way we typical teach it at the Naval Academy)

    Second, this criticism seems to be one that can be launched against the present proposal, for all that differentiates necessity from wide proportionality in it is to whom the duty is owed. In the case of necessity its attackers, in the case of wider proportionality its too non-attackers.
    Third, in line with the first comment and the response, a solution assuming that Hohfeldian claim-rights make the not rescuing or not defending oneself wrong requires a very specific theory of claim rights, the interest theory. Any will theorists, demand theorists, or others (hybrid theorists, priority theorists) would have to reject this theory of self-defense out of hand. That seems like a severely limiting constraint.

    Fourth, this solution does not seem to be compatible with what we would say about supererogatory cases of difficult rescue or supererogatory cases of choosing to not defend oneself even when the costs are greater. Because in those case, by definition, there is no claim right on the part of the one being rescued or the one attacking, but it seems the moral reasons for thinking that rescuing or not killing in self defense in those cases can be morally laudible if not morally required are of a kind with the reasons that make rescue or not killing in self defense mandatory when the costs to oneself are less severe.

  4. Apologies Jon,

    One more.
    Fifth, the results of cases in which there are conflicting moral considerations seem to indicate that perhaps cases of easy rescue and defensive force are distinct from claim rights. In a case in which I make two promises and determine “to my horror” as Judith Jarvis Thompson puts it, I can fulfill either one but not both. In this case, it seems that each claimant could still press their claim and doing so would have normative weight. Moreover, there would be some sort of moral requirement owed to the claimant who’s claim I could not fulfill (what that might be would be different in different cases, I may need to notify, apologize, make restitution, etc. etc.)

    Yet in a case of conflicting easy rescue in which I can only rescue one, its not clear these features are found. These seems even more true in cases involving the use of defensive force.

  5. Hi Marcus,

    Thanks very much for your comments. I’ll take them in order.

    First, yes I know that many people in the just war literature are happy to understand necessity as a form of wide proportionality, and so they won’t see this as a problem. In that sense I’m arguing against what may be the currently dominant view, but I think that dominant view misses something important.

    Second, what the dominant view misses, I think, is that there are different reasons to refrain from performing acts that are widely disproportionate as opposed to acts that are unnecessary. As you say, on my picture, the difference is a matter of directionality—who can complain of being wronged in the different cases. You suggest this puts my proposal in the same boat as the dominant view—that my view is subject to the same criticism as the one I press against the dominant view. But I don’t understand this. On my account, wide proportionality and necessity pick out different reasons to refrain (to whom the duty is owed), but on the dominant view this difference gets obscured in cases like Grenade which the dominant view deems unnecessary. The dominant view also gets different (I think mistaken) results in cases with the specific temporal structure that I discuss at the end.

    Third, I don’t have a dog in the will vs. interest theory fight, though my strong suspicion is that neither account offers a fully satisfactory picture of moral rights. But I don’t see why a will theorist cannot embrace what I say about rights of rescue. What I say is that such rights cannot be forfeit as a result of serious wrongdoing. Will theorists typically hold that all rights are alienable, that is, the right-holder must be able to waive or transfer any right. I’m not denying rights to be rescued can be voluntarily waived, I’m just saying they can’t be forfeit even as a result of serious wrongdoing.

    Fourth, I guess we disagree on this point. If the costs the defender would have to bear are genuinely supererogatory, then I don’t think the reasons for the defender to refrain from imposing defensive force really are “of a kind” with the reasons not to impose force when doing so would be unnecessary. When the defensive force is unnecessary, on my view, the aggressor has a claim against the imposition of the force, whereas in the supererogatory cases there is no claim. The defender still has a reason to refrain but it’s a different kind of reason, one not rooted in any rights or claims the aggressor can make.

    Fifth, I agree that in cases where some but not all persons can be rescued from some equivalently serious harm, it’s not true that each has a right to be rescued in any straightforward sense. This is because, on my view, one only has a right to be rescued where this can be done at reasonable cost to others, where this reasonable cost condition applies not only to the would-be rescuer, but also others who might be harmed as a result. For example, if Betty can only rescue Albert by paralyzing Carl, Albert lacks a right to be rescued by Betty because the costs to Carl are too high. In cases where some but not all can be rescued from some equivalently serious harm, I think (though I’m not committed to this) that it makes more sense to say that the group of victims has a claim that the rescuer help as many member of the group as possible (assuming no undue burdens or special features) but it’s not true that each individual has a claim to be rescued and can complain of being wronged if the rescuer cannot save them.

    Thanks again for these questions/objections.


  6. Dear Jon,
    I agree that serious wrongdoers “retain some moral standing,” but you seem to assume that all moral standing comes in the form of rights. That is mistaken. (See for instance my
    article “Self-Defense as Claim Right, Liberty, and Act-Specific Agent-Relative Prerogative.” But don’t take it from me: See Locke and Kant.) To take an example from Uniacke: the mere fact (assuming that it is a fact, and many think it is) that cats do not have rights, does not imply that you can kill them, let alone torture them, for the mere fun of it. So your step from “minimal standing” to “minimal rights” is a non-sequitur. Moreover, the further step from “minimal rights” to a “right to be rescued at minimal cost to others” is also a non-sequitur. For example, in order to deny that someone who culpably tries to kill me has a right against me that I do not kill him if I can avoid doing so at minimal cost to myself, I do not need to also deny that wrongdoers “retain the standing to make at least minimal claims on others.” I, for example, would affirm that this culpable would-be murderer has the claim against me that I do not torture him slowly to death. That does not mean, however, that he has the claim that I do not kill him. So I do not detect a valid argument for your claims. All the premises on which you seem to rely can be happily accepted without accepting your conclusion.
    As regards your example above, you state that the idea that “the wrongness has nothing to do with their claims” does not strike you as true. Well, I think that the wrongness of letting a bunch of cats die in the fire (although you can easily save them) has nothing to do with their rights. So an account based on value can explain such things, just as it explains other issues. To wit, as I pointed out in the mentioned article, the mere fact that someone waives his right to life (or, if you think the right to life is special and cannot be waived, then take the right not to be punched on the nose) does not yet justify me in killing him for the mere fun of it. This cannot be explained by the right – it’s not there – but by the person’s intrinsic value.
    But don’t get me wrong: I do not actually think that a culpable would-be murderer who tries to kill others for the fun of it or out of greed, for example, has sufficient value to make killing him wrong. At least I would, in defense of the necessity criterion, not like to rely on the claim to the contrary – let alone on your claim that the would-be murder has a right against his victim that the victim does not do to him as he was so very willing to do to her. That’s why I provided my alternative argument, that bases the necessity requirement not on the rights or claims or values of culpable would-be murderers, but on two other ideas. First, we might get it wrong (we think the person is culpable, yet he is not), second, we should not risk to unnecessarily kill innocent persons, for innocent attackers, unlike culpable would-be murderers, do have a right not to be killed unnecessarily. So I explain the necessity criterion from a principle of precaution: let’s not risk to unnecessarily kill innocent people. This risk, however, you also run when killing a culpable would-be murder: you run it because you are not omniscient.
    Best, Uwe

  7. Jon,

    That’s very helpful. Thanks.

    I think I understand your response on the second point. I like that contrast.

    But I’m a little more skeptical about what we can say about the dominant view.
    It’s true the dominant view is going to put forward its conclusions as objective oughts rather than directional duties. According to the dominant view, you all things considered ought not (objectively) act out in self defense if doing so will result in the deaths of 5 innocents, and you ought not (objectively) act out in self defense if doing so will result in the deaths your attacker in those cases in which you could also protect yourself merely by enduring a minor paper cut.

    But, while not highlighted, I think there is a further reason at play that in the case of 5 innocents in the dominant view: the driving force behind why you are prohibited to kill the five innocents is because they have a claim right against being so sacrificed. So you owe it to them to not sacrifice them. Now, is that directional aspect as explicit as it could be in the dominant view? Certainly not, but then again directionality far too often goes under-appreciated. BUT on the dominant view, the duty of necessity does not have that quick and easy step. It’s not clear at all if the duty in the case of necessity corresponds to a right of the attacker or not.

    What this implies is that within the dominant view there’s actually built in to the structure a greater difference between necessity and wide proportionality than on your view. In the dominant view, wide proportionality also definitely includes directional duties (although these are perhaps not as highlighted as they could be), while necessity at the very least may not involve such duties, and depending upon how you categorize the dominant view, does not involve such duties. In your theory, both necessity and proportionality involve directional duties, the only difference is to whom the duties are owed.

    Now none of that constitutes an objection against your view, its just a difference in framing. And given that the dominant view doesn’t actually highlight the directional aspects of the duties, I get why you’d highlight the way your theory helps elucidate them, but I think the problem you lead with (better demarcating necessity from proportionality) may actually speak against your current view rather than in favor of it.

    But that distinction brings us to the point about the theory of claim rights where I’d echo Uwe’s concerns. I see why you wouldn’t want to get into the will vs. interest fight, but it seems your view might nonetheless require an appeal to interest rather than an appeal to a right. Many are going to have problems ascribing rights in these cases. Many are going to brustle at granting any normative power on the attacker (and some on the more generic case of potnential rescuee). At the very least, the traditional Hohfeldian powers seem out of place. Demands do as well. Many might agree that its wrong to hurt the attacker in these cases, and many would grant that its wrong because of their interests, but to move from that fact about what makes the act wrong to the contention that we have wronged the attacker is contentious, even more contentious to say we have violated their rights–for exactly the reasons Uwe points out. Only interest theorists would endorse those inferences, and its one of the many reasons that so many of us would say “so much the worse for the interest theory.”

    Even more problematic, however, is that your view seems to deny the pro tanto nature of rights (which even the interest theorists endorse). I’m not aware of anyone who endorses the idea that one only has a right if respecting that right is the all things considered thing to do. That’s a pretty radical departure from standard analysis of claim rights.

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